Important points:
The documents sought to be produced are relevant in the context of issues to be adjudicated in the suit and the documents are available with the party, the court is empowered to make an adverse inference- The practice of adjudicating the relevancy of the documents sought to be produced at the interlocutory stage of the suit or proceeding may not be warranted in every case, for such adjudication, if made at that stage would delay the proceedings, as the aggrieved party is likely to take up the matter further and that process would continue indefinitely upto the highest forum.

Ext.P8 common order passed in two interlocutory applications, viz, I.A. No.7268 of 2018 and I.A.No.192 of 2019 in I.A.No.7268 of 2018, preferred in O.S. No. 20 of 2013 on the files of the District Court, Ernakulam, is under challenge in this original petition. Additional defendants 9 and 10 in the suit are the petitioners in the original petition.

2. O.S. No. 20 of 2013 is a suit in respect of the first defendant Church therein. According to the plaintiffs, the first defendant Church being a constituent Church of the Malankara Orthodox Syrian Church (the Church), the same has to be administered in accordance with the 1934 constitution of the Church. The stand of the contesting defendants in the suit, on the other hand, is that the first defendant is a Church of Jacobite Syrian Christians who uphold the spiritual supremacy of the Patriarch of Antioch and therefore, not one to be administered in accordance with the 1934 constitution of the Church. In the course of the proceedings, additional defendants 9 and 10 preferred I.A.No.7268 of 2018 seeking directions to the plaintiffs to produce the original of the 1934 constitution of the Church and other documents on the basis of which amendments were carried out to the 1934 constitution of the Church. I.A.No.7268 of 2018 was opposed by the plaintiffs contending, among others, that the documents, the production of which is sought, are not relevant for adjudication of the issues arising for consideration in the suit. An identical suit was filed earlier by persons similarly placed like the plaintiffs in respect of another Church as O.S.No.16 of 2004 before the very same court and an identical application like I.A.No.7268 of 2018 was filed by persons similarly placed like defendants 9 and 10 in the suit for production of the very same documents. In the said application, the plaintiffs therein took the stand that the original constitution and the minutes of the meeting in which the same was adopted have deteriorated in quality due to passage of time and are not in a state in which the same could be taken to court. In the light of the stand taken by the plaintiffs in O.S.No.16 of 2004, additional defendants 9 and 10 filed I.A.No.192 of 2019 in I.A.No.7268 of 2018 for appointment of a Senior Advocate as Commissioner with an expert in Archives or Forensic Science, for verification of the original of the 1934 constitution and the original documents, on the basis of which, amendments were carried out to the constitution. As noted, the above interlocutory applications were dismissed by the court below in terms of Ext.P8 order holding that there would be no document like the original to the constitution and only the draft of the constitution circulated in the meeting in which it was adopted and the minutes of the said meeting would be available, if at all available and that the said documents are not relevant in the matter of deciding the issues arising for consideration in the suit. As noted, additional defendants 9 and 10 are aggrieved by Ext.P8 order.

3. Heard the learned counsel for the petitioners and the learned counsel for the contesting respondents.

4. A party to a suit or proceedings is duty bound to lead the best evidence which would throw light on the issue in dispute and in case such evidence is withheld, the court may presume that the said evidence, if produced, would be unfavourable to the person who withholds it. This is what illustration (g) to Section 114 of the Indian Evidence Act, 1872 provides for. It is, however, open to a party to refrain from producing an evidence in his possession which he considers irrelevant. If the opposite party is dissatisfied, it is for him to apply for production of the same. Non-production of a document admittedly available with a party would give rise to an adverse inference against him that the said document, if produced, would be unfavourable to him. The maxim omnia praesumuntur contra spoliatorem (if a man wrongfully withholds evidence,